The U.S. Department of Education took a step in the right direction this week with the release of revised regulations on the assessment of students with disabilities. By incorporating a number of AFT's suggestions regarding the inclusion of students with disabilities in the calculation of adequate yearly progress (AYP), the department has helped ensure that schools will more appropriately and accurately assess the achievement of these students.

In May of this year, the AFT expressed concern that the new regulations would contradict provisions of the Individuals with Disabilities Education Act (IDEA) that make the individualized education program (IEP) team responsible for determining how children with disabilities participate in the state's assessment system. The revised regulations preserve the authority of the IEP team to make assessment decisions for students with disabilities.

The AFT also expressed concern that the definition of "students with the most significant cognitive disabilities" was too narrow. In response, the department removed this definition from the regulations.

Although we remain concerned about the implementation of the No Child Left Behind Act and hope that the department will continue to review other aspects of the law, particularly the AYP provisions, these revised regulations represent a positive step in the ongoing process of making this legislation live up to its laudable goals.

Following is an analysis of the revised Title I regulations regarding the assessment of special education children.

Positive developments
The regulations:

• Remove the definition of students with "significant cognitive disabilities," thereby providing states with more flexibility in deciding which students may be assessed using alternate achievement standards.
• Clarify that the 1 percent cap applies only to students who take the alternate assessment as measured against alternate standards (there is no limit on the percentage of students who may take the alternate assessment measured against grade level standards).
• Clarify that students who are deemed proficient or advanced on the alternate assessment based on alternate achievement standards will be counted as such when calculating AYP.
• Maintain the ability of states and districts to request an exception permitting them to exceed the 1 percent cap.
• Acknowledge that out-of-level or instructional-level testing may be included in the state's assessment system.
• Require states and districts to provide training to IEP team members on selecting appropriate assessments for students with disabilities.

Areas of concern

• Urban districts, which tend to educate students with more significant disabilities, will meet the 1 percent cap even before including students who take out-of-level/instructional assessments.
• Although it appears that the 1 percent cap no longer applies at the school level, most schools will work to stay within the 1 percent cap to ensure that they make AYP.
• Students who exceed the 1 percent cap must be considered not proficient in all relevant subgroups, even if such students demonstrated proficiency on the alternate assessment, thus, increasing the likelihood that the schools they attend will not make AYP.
• Districts will be tempted to "game" the system in determining which schools have students that put them beyond the 1 percent cap.
• Contrary to the intent of the regulations, students with significant cognitive disabilities most likely will not improve their performance on state assessments simply because schools and districts provide them with accommodations.
• Districts do not have the capacity to provide training to IEP teams, general and special education teachers and other staff on the technical knowledge needed to select and/or administer appropriate assessments for students with disabilities.

Areas of ambiguity

• How is the 1 percent cap computed at the district and state level? Is it 1 percent of all students (those with and without disabilities) in the grades assessed? How will the district assign the 1 percent by school? How will this affect each school's AYP status?
• Does the 1 percent cap apply at the school level?
• Does the department intend to provide a definition of "small schools" and "schools that provide special services"?
• How will the scores of students who take an alternate assessment measured against grade-level standards be counted?
• If a student is sent to another school for services, at which school will their scores count? Is it different if the student is attending another school because of a parental placement?
• For students taking the alternate assessment, what constitutes the alternate standards--the grade-level standards for that assessment (e.g., a fourth grade assessment would be measured against the fourth grade standards)?
• If the standards are supposed to be applicable to a wide range of students, will states lower their standards?
• Does the U.S. Department of Education plan to provide guidance on the use of appropriate accommodations?

The AFT will work to resolve these issues and will continue to keep you informed. The link to the revised Title I regulations is: http://www.ed.gov/legislation/FedRegister/finrule/2003-4/120903a.html.